Predatory Paternalism: The Changing Rights to Water, Enforcement, and Spillover Effects on Environmental Quality in the American West

Abstract

My dissertation comprises an integrated approach for assessing the impacts of delayed enforcement and quantification of property rights to water in the American west. Relying on millions of observations over time, I develop the first ever spatial mapping of water quality data relative to American Indian reservations connected to policy changes in property rights enforcement. Specifically, I look at the implementation (and lack thereof) of Winters rights, which refers to the 1908 U.S. Supreme Court case ruling that the U.S. federal government had reserved senior rights to water for tribes in establishing reservations, and that the power to do so “could not be denied.” Yet in the decades that followed, the federal government did not enforce these rights, and allowed states to appropriate water elsewhere in the pursuit of developing western states. In recent decades tribes have been able to begin to claw back these rights by engaging in arduous legal processes with incumbent water users. These cases often span decades and involve vast quantities of water. I study empirically the impact that these negotiation processes have on water use and quality, in addition to factors that incentivize tribes to begin these processes, and why parties settle. I also connect these negotiations to market transactions for water, analyzing how they influence market prices. I find that tribes are more likely to initiate Winters proceedings if there is more scarcity in water supplies, or tribes have intrinsic advantages in terms of reservation land mass. Clear commitments of funding to implement water settlements significantly increase the odds that parties will come to agreement, and the longer negotiations persist, the less likely they are to resolve. I also uncover entrenchment practices, that longer negotiations coincide with increased water use by upstream users. During negotiations, pollution and water use increase, but the former falls, and the latter increases, once rights are settled. Finally, I find that as these disputes resolve, market prices fall, while the onset of new water rights adjudications within a state coincides with price increases.